Mimesis Law
21 May 2019

It’s A Good Thing The Ooltewah Assault Remains Confidential (Update)

Jan. 7, 2016 (Mimesis Law) — Something terrible happened to a young man in Gatlinburg, Tennessee over Christmas break.  Three teenagers at a basketball tournament are charged with aggravated rape and aggravated assault. The press, the public, and “experts” are upset at the way the situation has been addressed.  We may never know what actually happened or how it’s being handled, and that’s the way the law requires it.  But when something salacious and awful happens in a small community, it’s impossible for people to leave it alone.

What little information is available comes from the media and the court of public opinion.  Both are swift, violent, and harsh in their judgments.  Apparently, three basketball players on the Ooltewah High School basketball team assaulted one of their own with a pool cue as part of a hazing ritual for new players.

The alleged victim spoke out against the treatment other freshmen players were receiving and was punished for it by the elder members of the team.  He suffered a perforated colon and bladder and required an eight day hospital stay at the University of Tennessee for his injuries.  Allegedly, someone videotaped the assault.

Because the incident happened over the Christmas break, the town of Ooltewah got upset, to put it mildly, when school officials didn’t immediately bring the hammer down after the media broke the story.  It’s an understandable reaction.  In a world where Twitter and Facebook grant us instant gratification, where media outlets live and die by the twenty-four hour news cycle, people want answers as to how a young man on a basketball team was savagely treated at the hands of his teammates. And they want it now.  The more salacious and awful a story, the more desperate everyone is to know about it.

One commentator put the community’s reactions towards Ooltewah High School, and Hamilton County’s District Attorney’s Office, rather succinctly.

Vacations and holidays should be sacred, but extraordinary events require extraordinary actions.  No one expects the answers to every question, but they want to know the situation is being taken seriously.  They want to hear that steps are being taken to punish those responsible, to assure parents and students that Ooltewah High is safe, and that its athletics programs are properly supervised.

It didn’t take long for those with agendas involved to demand the heads of everyone potentially involved in this horrific tragedy. Among those were Rhonda Thurman, a Hamilton County School Board member.

“I’m furious because the board hasn’t been told the details, and what we don’t know is maddening to me,” said Thurman. She says the entire team should have come home from Gatlinburg immediately after the incident.

“If this is what it’s come to, then we need to reconsider why we have sports in school,” said Thurman. “We need to send a clear message that if there is any hazing of any kind going on in any sport, your season is terminated immediately.”

“I wasn’t elected to guard the cat litter box, to cover up crap, that is not why I’m here,” said Thurman. ” I’m here to represent taxpayers and they want this dealt with swiftly. He could have died. It’s a miracle he did not die.”

People want to know what happened and how to prevent it from ever happening again. The local media filed Freedom of Information requests with Sevier County, Tennessee’s Juvenile Court and the Sevier County District attorney, all of which have gone unanswered.

Those requests will continue to go unanswered because the defendants and victim in this matter are all juveniles, and juvenile court proceedings in Tennessee are confidential as a matter of statute.

Tennessee’s Juvenile Court records are open for limited access, even in delinquency cases.  Unless you’re a party, an officer of the court, a probation officer, or someone who has custody of a child pursuant to a court order, you don’t get to see the court’s file on a defendant.  The media continually screeches T.C.A. § 37-1-153(a)(5) grants them access, as the public has a “right to know” what’s going on in their community. But the Tennessee Attorney General opined fifteen years ago the media didn’t have a “legitimate interest” in juvenile court cases justifying them access.  That holds true today.

Some “experts” cited by the media claim the nature of the offense warrants the Ooltewah defendants’ records be made public.

Executive Director for the Tennessee Coalition for Open Government Deborah Fisher tells us that Tennessee state law says petitions and orders of the court involving juveniles shall be open to public inspection under certain charges including aggravated rape.

“There is a part of the law that says if the conduct is a violent act – and there’s a list of certain crimes that this covers – that the information is public and the public has a right to know about it,” said Fisher.

Ms. Fisher, part of a well-meaning organization with an agenda of government transparency for all, gets the law ever so slightly wrong.  Only “petitions” and “orders of the court” are to be made public, and only if the circumstances show the juvenile was fourteen or older when the alleged offense occurred, and

The conduct constituting the delinquent act, if committed by an adult, would constitute first degree murder, second degree murder, rape, aggravated rape, rape of a child, aggravated rape of a child, aggravated robbery, especially aggravated robbery, kidnapping, aggravated kidnapping or especially aggravated kidnapping.

Therein lies a problem. We know of no petitions or orders of the Court that are available for public review, whether the teenagers are over fourteen, or if this will even escalate to aggravated rape “if committed by an adult.” Aggravated rape in Tennessee requires the offense include “unlawful sexual penetration,” and with what little information is available it’s hard to justify this action as “sexual penetration.” Aggravated assault, maybe, but not rape.

Delinquency proceedings are kept confidential because we realize juveniles have a tendency to do really stupid things. Sometimes those really stupid things can be evil and malicious.  We still protect those who do evil and malicious things absent clear circumstances, because all of us who work in the juvenile justice system believe even the worst “superpredator” can turn his or her life around.

What happened in Gatlinburg was a tragedy of the highest order. A teenage boy was horrifically injured by the hands of other teenagers with whom he played sports, all because he spoke up against hazing and bullying from elder students.  People should be upset by that.  And because the confidentiality laws are tailored to protect all the children involved, people should demand that law be followed to the letter in the days to come. If that means they don’t get to learn as much about the offense as they want, they will have to suffer.

Update: Ooltewah High School has been found guilty of the crime of not quickly acceding to the public’s whims for more information by the court of public opinion. The sentence imposed is cancellation of the Ooltewah Owls’ Basketball season for the rest of the year.

Hamilton County School Superintendent Rick Smith imposed the sentence Wednesday.

[The] Sevier County District Attorney’s Office and the Gatlinburg Police Department have expressed concern regarding the extent to which the press and social media have been speculating upon the incident…

A great deal…has centered around the operation of Ooltewah High School’s boys’ varsity basketball program.  Since this speculation…could threaten the integrity of law enforcement’s investigation, I have decided to end the team’s 2015-2016 season.

This wasn’t good enough for the parents of Ooltewah High’s children.

“It’s terrifying…at the end of the day, you didn’t give us anything.”

With that reaction, no clairvoyance or trial experience is necessary to know more heads will reach the chopping block long before the Defendants’ day in court.

5 Comments on this post.

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  • dm
    7 January 2016 at 11:17 pm - Reply

    “Aggravated rape in Tennessee requires the offense include “unlawful sexual penetration,” and with what little information is available it’s hard to justify this action as ‘sexual penetration.’ Aggravated assault, maybe, but not rape.”

    I don’t understand your basis for concluding that penetration of the anus with a pool stick is not sexual penetration. If the object used to penetrate the supposed victim was a dildo rather than a pool stick would that make it sexual penetration (even where the motive and damage is the same as with the pool stick)? What if the alleged perpetrator used his fist rather than the pool stick (again, with the same motive and damage as is associated with the use of the pool stick)?

    Seriously, would you mind providing a brief explanation of your rationale. Thanks.

    • CLS
      9 January 2016 at 9:24 am - Reply

      “dm”:

      I reply to this solely to inform the readership that there’s a split in the Tennessee courts over your exact conundrum. If one takes a gander at the “sexual offenses” definitions portion of the Tennessee Code, right next to the definition of “sexual penetration” is a definition of “sexual contact” delineating the purpose of said contact being “for sexual gratification.”

      Some court opinions hold sexual gratification is a necessary component for rape. Others have not. Some have even opined that “sexual penetration” requires the insertion of man parts into lady parts, even if for a brief second.

      We don’t have a clear answer on that yet, but I am of the mindset many defense attorneys have taken that “sexual penetration” requires “sexual gratification.”

      But it’s just easier to charge the kids with aggravated rape, since it’s a class A felony in Tennessee and rape is the buzzword of the year.

      • dm
        9 January 2016 at 12:44 pm - Reply

        Thank you for responding to my inquiry, your response clears up the difficulty I was having understanding your original analysis. Thanks again.

  • CLS
    9 January 2016 at 1:29 pm - Reply

    You’re welcome. We’re under a mandate here to not make people stupid when we write, and I’m glad you took the time to ask the question. It may help clear things up for others who had the same confusion.

  • Hamilton County Juvenile Justice Takes A Sharp Left Into Crazytown
    18 January 2016 at 9:10 am - Reply

    […] Jan. 18, 2016 (Mimesis Law) — The last time I wrote about the horrific assault of an Ooltewah, Tennessee teenager over the Christmas holiday by three of his basketball teammates, I mused the following in an update to the story. […]