Judge says rape was two crimes
Raymond Carl Hughes committed two crimes when he raped a mute, quadriplegic girl while she was under his care as a registered nurse, a judge ruled Wednesday.
Spokane County Superior Court Judge Jerome Leveque said there was no double jeopardy in Hughes’ conviction for both second-degree child rape and standard second-degree rape, even though there was only one rape.
The reason, Leveque said, is that the Legislature intended to protect a different class of victims with each law. Hughes’ victim fell into both classes.
It was second-degree child rape for Hughes, 35, to have sex with the girl in her home last April because she was 12 years old and not legally able to consent to intercourse.
And it was standard second-degree rape because the girl was incapable of resisting or reporting the crime. Dying from complications of cerebral palsy, she could neither move nor speak.
Assistant Public Defender George Caplan wanted Leveque to dismiss one of the counts even though Hughes pleaded guilty to both of them last month.
Leveque previously had indicated the argument was premature.
Deputy Prosecutor Kelly Fitzgerald wanted both convictions to bolster her argument for an above-standard or at least a standard-maximum sentence. Initially, she also hoped it would increase Hughes’ standard sentencing range.
Fitzgerald conceded, though, that Hughes’ standard range will remain 6 1/2 to 8 1/2 years.
That’s because the convictions, although legally distinct, stem from the same “course of conduct” for sentencing purposes.
Leveque ruled in January that Hughes can’t receive an above-standard sentence because a U.S. Supreme Court ruling last summer invalidated part of Washington’s sentencing law.
The court said defendants are entitled to have juries determine facts used to justify exceptional sentences.
Leveque and several Spokane County judges have determined that they lack authority to empanel special juries to consider aggravating factors.
Two of three divisions of the Washington Court of Appeals have said judges may empanel special juries.
The third division, based in Spokane, and the state Supreme Court have yet to weigh in on the issue.
Although Hughes won’t get an above-standard sentence unless Leveque’s decision is overturned on appeal, Caplan objected that Hughes’ dual convictions may prejudice a parole board against him.
The sentence Leveque hands down at a yet-unscheduled hearing will be only the minimum Hughes must serve. Under state law for serious sex offenders, a parole board may keep him in prison as long as it considers him dangerous.