Mimesis Law
27 January 2022

Just Enough Outrage to Sort of Fix That One Really Obvious Injustice

Oct. 21, 2015 (Mimesis Law) — Nineteen-year-old Zachery Anderson thought he had sex with a seventeen-year-old girl he met on the internet. Unfortunately, she was fourteen. An ABC article explains what happened in the aftermath of his conviction and sentencing:

Zach Anderson, a 20-year-old Indiana man who was ordered to spend the next 25 years on two state sex offender registries for having what he believed was consensual sex with a teen girl who lied about her age, was resentenced to two years probation.

Berrien County Judge Angela Pasula handed down the new punishment to Anderson, of Elkhart, Indiana, at a hearing in Michigan today.

“I’m feeling really good,” Anderson told “Nightline” today. “I think this sentence was a lot more reasonable than the first time.”

In his original sentencing, Anderson was ordered to register as a sex offender and remain on the Michigan and Indiana state registries until 2040. He has now been removed from the Michigan list, but remains on the Indiana list. His legal team plans to challenge that.

“This is a big, big victory,” his father Les Anderson told “Nightline” over the phone. “He isn’t a convicted sex offender anymore, so that’s huge.”

I can’t say I’d be anywhere near as pleased with the outcome as Anderson seems, but that’s no doubt due to my general inability to fathom how on earth anyone can support bright line rules in situations like Anderson’s.

Actual Michigan laws notwithstanding, if he’d been seventeen and the girl said she was the same age, would it be as bad when she turned out to be younger? What if it was the day of his eighteenth birthday? Or what if he was still nineteen but developmentally disabled to the point that his mental capacity made him emotionally younger than she was? What if she said she was eighteen? What if she said that and presented a fake ID? I could go on, but you probably get the point. Where do we draw the line? Or more importantly, why do we even need a line?

My questions are hard ones, and it should be that way. The law cares about consent. Consent in a real sense, not a legal bright line test sense, isn’t simple. The problem with someone legally an adult having sex with someone legally a minor is complex. It involves a relationship with a potential power inequity, and the parties are likely to have varying degrees of maturity and even physical development. There are lots of things to consider. Simply making a law that provides for an age of consent and treating it like it’s really just that easy is pure laziness. Although I can see why it’s tempting, it will invariably lead to cases like Anderson’s.

We owe it to ourselves to put up with these difficult questions. Prosecutors should have to think about something more than the black and white age of consent before filing charges. We should figure out a way to allow the finder of fact, be it jury or judge, to decide where to draw the line. The only other option is continuing to ignore right and wrong as well as the real core issue. These sorts of crimes are serious. It’s no joke; just ask Anderson.

The article goes on to provide some classic criminal law reporting stupidity:

“Nightline” profiled Anderson’s case and his family’s fight to clear his name in July before his appeal hearing on Sept. 8, when his criminal sexual conduct sentence was vacated. His story went viral, with thousands of comments pouring in on Twitter, Facebook and Reddit.

The phrase “clear his name” makes me bristle almost every time I see it. This is a perfect example of why.

Anderson, you see, committed a freakin’ crime. He had sex with a fourteen-year-old. He was nineteen. I’m the first person to fight against that being a crime under the right circumstances, and his case may well be as right as circumstances get, but clearing his name means proving he didn’t do it to damn near every person who reads the phrase.

He isn’t claiming innocence. He’s trying to lessen the consequences for doing something that maybe shouldn’t be illegal and certainly shouldn’t have the impact it was initially going to have on his life. There’s nothing to clear. There are bad laws and a system that does bad things with them, and to paint it in a name-clearing light draws attention away from that, the real problem.

If I were Anderson, I wouldn’t be too crazy about my new probation terms:

Under his probation with his original sentencing, Anderson was forbidden from owning a smartphone or using the Internet. He is not allowed to talk to anyone younger than 17, other than immediate family. He is banned from going to any establishment that serves alcohol and he has to be home before 8 p.m. every night.

But with his resentencing, a few of those restrictions have eased.

“He’s still going to have some restrictions under probation,” Les Anderson said. “He’s now allowed to use the computer, but for school only, which is fine.”

Given the circumstances, his initial sentence seems over the top. If Anderson was a normal teenage guy who tried to use the internet to get laid by a girl he thought was the age of consent in her jurisdiction, and by all accounts that seems to be the case, he’s never going to make the same mistake again. Absent something suggesting he was seeking out someone under seventeen, why on earth prevent him from talking to people under seventeen? He clearly wanted a seventeen-year-old. If the law makes it a crime no matter what if the person is in fact under a certain age, then tell him that. A court order that he be more careful and not break any more laws would fix the problem.

As for the curfew, if Anderson is really such a pedophile, it seems to me the terms of his probation should encourage him to be out after dark, after most kids’ bedtimes. Are they worried he’s going to go straight to all the late night local hangouts of fourteen-year-olds pretending to be seventeen? Also, places that sell alcohol, especially ones that exclude minors entirely, seem like exactly the places he should be. If his problem is with minors in general or having sex with women who are not age verified, a 21 and older bar is just the ticket for the guy.

Furthermore, unless there’s some aspect to this story that nobody’s reporting, keeping him off of computers is just silly. He used the internet to do something he thought was legal. It wasn’t. The girl lied, and he hadn’t done his due diligence. What about the internet in particular is going to make him do that again? Had he met her in the grocery store, would they ban him from shopping?

In a case like this, the ubiquitous sex offender probation term about not using a computer is the product of the disturbing public sentiment in this country that allows the government to control all sorts of behavior not because it will actually make a difference, but just because. It’s not like Anderson was looking at child pornography or picking up girls in underage chat rooms. The internet was a tool to do something he thought was legal. It only turned out not to be later.

After reading that article, it’s easy to wonder why people are making a big deal of the resentencing at all. Luckily, the New York Times article on the subject is a lot more illuminating:

Mr. Anderson, who was 19 at the time of his offense last December, was sentenced on Monday to two years’ probation under the state’s Holmes Youthful Trainee Act, a special status for young offenders that a previous judge had denied him. Under the terms of his new sentence, issued by Judge Angela M. Pasula of Berrien County District Court, Mr. Anderson will not be required to join the sex offender registry in Michigan, and in a change from his original sentence, he will be allowed to use the Internet for schoolwork.

“Before he was on the sex offender list and he was a convicted felon,” said Scott Grabel, Mr. Anderson’s lawyer. “Now, as long as he successfully completes probation, nothing ever goes on the record in reference to this matter. This gives us significant closure in the case.”

Making the sentence diversionary, giving him the ability to get it off his record by jumping through the right hoops for a set period of time, is an enormous change. It’s also something the ABC article didn’t even mention. The same is true of a CNN article, which just says this:

Because of his age, Anderson’s original sentence was thrown out last month and he was resentenced Monday under Michigan’s Holmes Youthful Trainee Act. The law provides leniency for first-time offenders between the ages of 17-20.

Simply saying the law “provides leniency” is roughly as enlightening as saying nothing at all. Had its author realized that Anderson was getting the opportunity to make the whole mess go away in the end, I can only assume the article would have mentioned that prominently, and the same is true of the ABC article. I’m not one to suspect some sort of media conspiracy to hide what’s really happening, and in this case I can’t imagine what that would accomplish, so I can only assume the folks at CNN had a discussion like this:

Intrepid Reporter: So this guy was resentenced under some youthful trainee act thingy. I’m not sure how exactly it works.

Colleague: Does the guy seem happy about it?

Intrepid Reporter: Oh yeah. It’s what he asked for the first time and didn’t get.

Colleague: And you’re not sure why it matters?

Intrepid Reporter: Not a clue.

Colleague: Hmm. Well, why not just say it provides leniency? People accused of stuff are usually happy about stuff when it’s lenient.

Intrepid Reporter: Brilliant!

The good news is that Anderson’s life will likely not be permanently ruined by two and a half decades on oppressive sex offender probation. The bad news is that he went through all of this and still has some slightly less oppressive probation left to do before he can really put all of this behind him. It’s also not exactly good news that this was all that nationwide protest was able to accomplish.

I’d say something about how, if only we could focus that on the laws generally rather than one particularly compelling story, then maybe we could get some real change to happen, but what it took to even get an imperfect result here puts into perspective just how much support that sort of widespread change is going to take.

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  • mb
    21 October 2015 at 4:18 pm - Reply

    I’m familiar with Hanlon’s Razor, but don’t you think it’s possible that the same hysteria that justifies these bright line rules necessitates obscuring the real nature of whatever rule they invoked to help this kid? At least if they want to portray him sympathetically, it needs to be clear that whatever relief he gets won’t be generally applicable to all those pedophile monsters who try and fail to have sex with consenting adult women. This way, there’s no need for the reader to consider that the law might technically criminalize a large amount of people who probably shouldn’t be criminally punished. Anyone who has sex with a fourteen year old they believe to be seventeen is a dangerous child molester, except for that one guy. Now we can all go back to being hysterical.