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Why the Baylor ex-frat president accused of rape won’t serve any time in jail

He’ll just need counseling while on probation — and to pay a $400 fine.

by Carter Sherman
Dec 14 2018, 7:36pm

A former Baylor University fraternity president accused of repeatedly raping a woman at a party won’t spend any time behind bars or have to register as a sex offender. Instead, he’ll just need counseling while on probation — and to pay a $400 fine.

The student, Jacob Walter Anderson, landed such a light sentence thanks to a plea bargain reached with prosecutors earlier this week. After his indictment on sexual assault charges, Anderson agreed to plead “no contest” to the lesser charge of unlawful restraint.

The case has sparked both widespread outrage and confusion. But cases like Anderson’s may not be so uncommon: Few rape cases ever end in a felony conviction, and plea deals are overwhelmingly common across the criminal justice spectrum. Federal prosecutors let financier Jeffrey Epstein, who’s been accused of sexually abusing dozens of underage girls, plead guilty to state prostitution charges, which put him in prison for just 18 months, the Miami Herald reported.

“In general, plea bargaining is done totally in the shadows,” said Thea Johnson, an associate professor at University of Maine School of Law who’s studied plea bargains. “One reason I don’t know if the #MeToo movement will have a huge impact on the criminal justice system is, for the most part, we don’t see this stuff.”

What exactly is a plea bargain?

Put simply, a plea bargain is an agreement between the defendant and the prosecutors, where the defendant will plead guilty or “no contest” in exchange for some compromise from the prosecutor. A judge must accept a proposed plea bargain, but the prosecutor has wide latitude to shape it, from choosing the charges the defendant will face to recommending the sentence the defendant will have to endure (or, sometimes, not endure).

Not all plea deals require that a defendant admit guilt. Stephen Dalton Baril, an ex-University of Virginia student accused of raping another student, took a plea deal last July that let him maintain his innocence and not spend any time in jail.

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This July 27, 2006, file photo, provided by the Palm Beach Sheriff's Office shows Jeffrey Epstein. (Palm Beach Sheriff's Office via AP, File)

Though federal law and some state laws dictate that victims must be told when a plea bargain is offered, that doesn’t always happen. Several women who say they were sexually abused by Epstein when they were underage are now suing the federal government for not telling them that federal prosecutors had negotiated a plea deal with him, the Miami Herald reported last month.

The family of the woman Anderson was indicted with assaulting learned about the accepted plea through the media. "I apologize for not telling you both about this agreement before there was a story in our newspaper. I didn't know there would be a story about a plea that hasn't occurred and about which nothing has been made public,” prosecutor Hilary LaBorde wrote the woman’s family, in a letter obtained by CNN.

“Ultimately, the prosecutor doesn’t represent the victim and is really supposed to make a decision about what’s best for society,” Johnson explained. “In our system, it’s not 100 percent clear what sort of voice the victims have. And we only think about it when we see a case like this and we say to ourselves, ‘Well, gosh, that feels deeply unfair to the victim.’”

How common are plea bargains for sex crimes?

For prosecutors, a plea bargain can guarantee a conviction. Just five of every 1,000 rapes result in a felony conviction, according to the Rape, Abuse & Incest National Network, the nation’s biggest anti-sexual violence organization; 4.6 rapists will be incarcerated. By contrast, out of every 1,000 assault and battery crimes, 41 end with a felony conviction and 33 criminals will be incarcerated.

In her letter, LaBorde said she had recently tried another, similar case that had resulted in an acquittal, even though LaBorde believed the evidence was actually stronger in that case.

"Three of the male jurors [in that case] told me 'they would not send anyone to prison for that. One of the female jurors — a nurse — said she didn't think the defendant 'looked like a rapist,’” LaBorde wrote. She went on, “It's my opinion that our jurors aren't ready to blame rapists and not victims when there isn't concrete proof of more than one victim.”

No one really knows how frequently sex crimes end in plea bargains, according to Jane Anderson, an attorney adviser at Aequitas, a nonprofit that aims to develop best practices for prosecutors looking to target gender-based violence and human trafficking cases.

“I sense that a lot of prosecutors are a little gun-shy on prosecuting these cases because they haven’t had success, and therefore they want to protect victims, which is great,” said Jane Anderson, who spoke only generally about prosecutors and not specifically about Jacob Walter Anderson’s case. “But not all victims need protecting.”

Plea bargains are common across all types of crimes, not just sex ones: More than 90 percent of criminal cases across the country are estimated to end in guilty pleas, according to the Vera Institute of Justice. (One Vera study found that, in terms of sentences offers, black and Latino defendants facing misdemeanor charges were more likely to be offered jail or prison terms, compared to white defendants in similar situations.)

Why do so many cases end in plea bargains?

Some victims want to avoid the pain and uncertainty of a trial — another reason why prosecutors often pursue plea bargains. But others consider finding the strength to testify a victory in itself. Jane Anderson recently spoke with a survivor who, she said, testified at her trial. Her rapist was acquitted.

“She still sees this as a form of justice because she was able to speak her truth,” Jane Anderson explained. ‘She had a prosecutor who believed her. She had law enforcement that believed her. And so she said, ‘Why take away another option from me?’”

"In general, plea bargaining is done totally in the shadows."

For defense attorneys, a plea might keep their clients from going to prison, being deported, or having their name added to the sex offender registry. That’s often a huge concern for defendants, said Johnson, who’s examined so-called “creative plea bargaining.” While sentencing guidelines for certain crimes carry certain mandatory consequences — like prison time, or registering as a sex offender — that prosecutors can’t subvert, they can allow a defendant to plead to a different crime without those requirements.

If Jacob Walter Anderson had been convicted of sexual assault, he could have served up to 20 years in prison.

“Sometimes that just involves bargaining to something the guy didn’t do,” Johnson said. “It can be tricky to get out of it. But it’s kind of proof of how much discretion prosecutors have, that they basically figure out ways to get out of it.”

Ultimately, when a case ends in a plea bargain, both the prosecutors and the defense end up having to invest fewer resources and sinking less work into a case whose outcome is far from assured.

“Of course, who gets left out?” Johnson asked. “The victim.”

Cover image: In this Monday December 10, 2018 photo, former Baylor University fraternity president Jacob Anderson walks out of the courtroom in Waco, Texas. (Jerry Larson/Waco Tribune-Herald via AP)

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