Commentary and information about public safety and security, intelligence and counterintelligence, open government and secrecy, and other issues in northern Idaho and eastern Washington.

Location: Coeur d'Alene, Idaho, United States

Raised in Palouse, WA. Graduated from Washington State University. US Army (Counterintelligence). US Secret Service (Technical Security Division) in Fantasyland-on-the-Potomac and Los Angeles. Now living in north Idaho.

Tuesday, March 07, 2006

Following Orders?

The front page story in the Tuesday, March 7, 2006, The Spokesman-Review was headlined Cops: Fireman thought girl was over 18. The headline concisely summarizes how the Spokane Police Department lamely excuses its failure to properly investigate and make an arrest in the firehouse sex case.

In yesterday's blog post I noted there were several possible crimes committed in the firehouse sex case. One was RCW 9.68A.040 - Sexual exploitation of a minor. In part, it reads "(1) A person is guilty of sexual exploitation of a minor if the person: (b) Aids, invites, employs, authorizes, or causes a minor to engage in sexually explicit conduct, knowing that such conduct will be photographed or part of a live performance. (2) Sexual exploitation of a minor is a class B felony punishable under chapter 9A.20 RCW."

The facts on which the probable cause to arrest the firefighter for the crime noted above are these: The firefighter is a person. The 16-year-old girl is a minor. The firefighter invited the minor to the fire station where he caused the minor to engage in sexually explicit conduct which he was prepared to photograph and which he did, in fact, photograph. Police detectives saw the photographs in the firefighter's possession at the firehouse. The firefighter made evidentiary admissions to the detectives.

A reasonable person examining the facts already reported and applying them to the elements of the crime identified in the preceding paragraph would conclude there was more than sufficient probable cause to arrest the firefighter for a violation of RCW 9.68A.040. Probable cause, not conclusive proof of guilt, is what is required for an arrest.

In the newspaper story's fourth paragraph today, Acting Police Chief Jim Nicks reportedly agreed with his detective and supervisor that because the firefighter said he didn't know the 16-year-old girl was under 18 and the detectives believed him, there was no probable cause to arrest him. Acting Chief Nicks apparently believes that the firefighter's failure to accurately determine the girl's age is a complete defense which prevented his detectives from arresting the firefighter and seizing volatile physical evidence to prevent its destruction.

Acting Chief Nicks is completely wrong. The law is very specific about how the "I thought she was 18" defense must be proven by a preponderance of the evidence and when it can be used. The law explicitly required the firefighter to determine that the girl was not a minor before he engaged in sexually explicit conduct with her. The law explicitly defines what was required to determine the minor's age. The firefighter did not meet the requirements.

RCW 9.68A.110 - Certain defenses barred, permitted reads at "(3) In a prosecution under RCW 9.68A.040 or 9.68A.090, it is not a defense that the defendant did not know the alleged victim's age: PROVIDED, That is is a defense, which the defendant must prove by a preponderance of the evidence, that at the time of the offense, the defendant made a reasonable bona fide attempt to ascertain the true age of the minor by requiring production of a driver's license, marriage license, birth certificate, or other governmental or educational identification card or paper and did not rely solely on the oral allegations or apparent age of the minor."

Notice carefully the wording. "It is not a defense that the defendant did not know the alleged victim's age..." A "defendant" is a person who has already been arrested or indicted and charged with the crime. The police detectives were duty bound to arrest the firefighter, because the elements of the crime had been met and probable cause established. Had he been arrested, the firefighter could have raised the "I thought she was 18" defense at his own trial, but he would have been required to convince a judge or jury with a preponderance of the evidence. The detectives were equally duty bound to identify and preserve all of the evidence related to the crime.

The question that must be asked is why were a detective sergeant and a sex crimes detective so eager to accept as fact the firefighter's assertion that he thought his victim was 18? And even if they did believe it, it is not their decision to judge the quality of a suspect's defense in determining whether or not to make an arrest. They had physical evidence of a crime and probable cause to arrest for that crime, yet they either erased or allowed to be erased the physical evidence which conclusively proved one element of the crime.

It is inconceivable to me that even in Spokane, a sex crimes detective and his sergeant could unintentionally bungle a case this badly, particularly after getting a roll-out call that started with a call from Acting Chief Nicks. Common sense says that when someone in authority calls and says, "Chief Nicks wants you to...," you're going to follow those instructions meticulously and completely. We have to consider the possibility that in the firehouse sex case, the sergeant and the detective did exactly what they were ordered to do when they were sent to Fire Station 17.


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