STUDENT’S DOUBLE RECANTATION NOTWITHSTANDING RESULT’S IN SEX CONVICTIONS FOR WOMAN PROVIDING TUTORAGE AT HIGH SCHOOL: THE CASE OF ABIGAIL SIMON

A 33-year-old tutor hired to elevate the grades of faltering athletes at two Catholic high schools in Grand Rapids, Michigan was accused of having a sexual relationship with one of them; Abigail Simon (roughly 31 at the time), was charged with (the events were approximately 2 years ago), and convicted this week of 3 counts of criminal sexual conduct with a tenth-grader who was 15 at the time. (She was also convicted of another related count and acquitted of a lesser offense). The 11-day trial was controversial mainly because the defense conceded the sexual acts but argued that Simon was the real victim, apparently therefore not capable of forming sexually aggressive intent (most sexual assault crimes only require general, as opposed to specific intent, but proof of some sexual intent is generally required). To bolster this theory, the defense presented expert testimony on the issue of abuse, but the judge limited such testimony by ruling that the experts could not opine that Simon was a victim in this case. This ruling, along with a previous limiting admonition that the defense could not present text messages from the boy (not to the defendant) wherein he allegedly expressed his low opinion of women in general. The judge was apparently concerned over the possibility that such collateral matters might distract the jury. The prosecutor aggressively turned the tide on the defense by openly stating that the defense was trashing the victim, a tactic often used when the victim is a woman. The former student was subjected to intense cross-examination over double recantations regarding the issue of whether they even had a sexual relationship. A Grand Rapids Police Detective said the boy initially told police the two had sexual relations but then recanted; later, he again changed his mind and said there was sexual contact. The student tipped the scales at around 225 pounds during the trial but claims to have weighed less back then. He was 6.3 foot at the time of trial.  Simon alleged that she was intimated and frightened by him and only appeased him to ward off harm to herself. But the 1,000 plus texts (strongly depicting a sexual “consensual” relationship) presented to the jury apparently convinced them otherwise. Sentencing is set for January 6th, 2015. It is not clear whether any mandatory sentence is required or whether there is room for a probationary sentence. Simon will almost certainly be required to register as a sex offender for a lengthy period.

COMMENT: Frequently, in cases of this nature, the issue of whether the defense may present specific instances of the victim’s past conduct before the jury comes up. It is well settled in most states that the victim’s prior sexual conduct is not admissible, absent a compelling reason, pursuant to existing “Rape Shield” laws. Similarly, specific instances of conduct, which often may seem highly relevant to the defense (such as the message about women in the texts above), may be deemed inadmissible because they are collateral matters not relating directly to the main issues of guilt or “innocence.” While these rules are understandable in the sense that trials are designed to be orderly and focused on relevant facts which either tend to establish or not demonstrate proof of the elements charged, such limiting rules can prevent a jury from “getting the whole picture.”  And here, where the defense is that she feared the victim, and that she was abused, and that the victim was a physically imposing person, his past, including his alleged demeaning texts about women in general, seems extra relevant. While it may be true that those specific texts were not directed at her, and she may not even have been aware of them, such evidence would reinforce her claims. The jury should have known about this. Finally, the derogatory comments made by the prosecutor that the defense was trashing the victim, in this case, were at best, disingenuous.

UPDATE: Abigail Simon received a sentence of 8 to 25 years in prison following her conviction for three counts of criminal sexual conduct. Her case is likely to be appealed.

COMMENT: It has been widely reported that Simon was offered a deal before trial to plead to a second-degree charge that carried a maximum sentence of 15 years, however, the agreement was that she would not receive more than one year in jail. Simon opted to exercise her Constitutional right to a trial and then received a sentence eight times harsher than the earlier offer. There are also reports that she was later offered another deal where she could plead to a count that carried a maximum sentence of 5 years, however, the sentencing guidelines would likely have placed her sentence at around five months. Looking back, absent a successful appeal (and there appear to be grounds for an appeal), the offers now seem attractive. On the other hand, such practices seem to chill a defendant’s choice between admitting guilt and going to trial. At any rate, for what it is worth, we think the sentence was way too harsh.

UPDATE

GRAND RAPIDS, Mich. (WOOD) — The lawsuit against the Catholic Diocese of Grand Rapids and schools by the teen victim of sexual abuse by a tutor has been dismissed.

That includes the case against the tutor, 34-year-old Abigail Simon, who remains in the state women’s prison.

The spectacular 11-day trial in November 2014 was the subject of national attention — due in no small part to Simon’s defense that she was the victim of rape by a 15-year-old Grand Rapids Catholic Central High School student, not the other way around. But evidence including recorded phone messages and thousands of text messages convinced a jury that Simon was the sexual aggressor. She was convicted of four felony charges and sentenced to prison for eight to 25 years.

About a year after the conviction, the victim filed a lawsuit against the school, its leaders and the diocese, which oversees the schools. Source: Wood.com

We repeat our conclusion that the sentence was way too draconian and wholly inconsistent with similar cases across the nation. The civil suit, with a lesser stand of proof (preponderance of the evidence) versus the criminal case (beyond a reasonable doubt), reinforces our decision to question her guilt. Simon did not receive a fair trial in the criminal case. And the appellate courts got it wrong too.

 

One comment

  1. 8-25 years in prison for a first-offender convicted of a nonviolent and victimless and malum prohibitum felony, a “crime” that’s a legal act in dozens of other nations, including European countries; a “crime” in which the “victim” enjoys the sex far more that the woman who “rapes” him by allowing him to penetrate her in a factually consensual relationship; 8-25 years in prison in a country in which, during the 1990s, the average time-served for murder was less than 6-years and the average time-served for all violent crimes (aggravated assault, robbery, violent-forcible rape, and homicide) was approximately 4-years. And it’s like that such averages are even shorter today.
    8-25 years in prison for a woman who never committed a violent crime in her life and never will and is not a “threat to society” or to anyone. And her sentence also includes years of punitive sex-offender treatment, intensive psychotherapy to treat her for and cure her of what precisely, heterosexuality(?), years of quasi-totalitarian post incarceration supervision, life-time parole monitoring in which she must wear electronic ankle and wrist “bracelets,” and registration for life as a uniquely deviant and dangerous criminal. Her name, mug-shot, and address will be on the internet until she passes from this world at age 77 or 84 or 92. To call all of this insane would be an understatement. It’s beyond insanity. And she claims the “victim” was the aggressor who forced himself on her and to which he initially confessed to police. I know few of the facts and don’t know what really happened.

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