The Brianne Altice Case: On Age Distinctions in Law, Suing a “Deep Pocket,” and Potential for Disparate Treatment by the Legal System of One who is White, Beautiful, and Female
By Ken K. Gourdin
Here’s a link to a Deseret News story about Brianne Altice, a former Davis High (Utah) English teacher who is accused of having sex with three students (and admits to it in two of those cases): http://www.deseretnews.com/article/865626994/Former-Davis-High-teacher-admits-having-sex-with-3-students.html?pg=all (last accessed April 26, 2015).
One commenter took issue with the fact that the juveniles against whom Ms. Altice perpetrated her crimes (she has admitted guilt in two cases) are approaching adulthood, and asked whether age distinctions made in cases such as this (a few months’ age difference may be the difference between a misdemeanor and a felony, or between criminal conduct and consensual conduct) are fair. I responded:
I understand your concern. We all know young people who are 18 going on 30, and we all know older people who are 40 going on 12. Often, age distinctions in law can seem rather arbitrary. But that’s what discretion in law enforcement and among prosecutors and judges is for. Conversely, it seems to me that your proposed solution, carried to its logical conclusion, would necessitate the abolishment, not only of most all age distinctions in law, but of the juvenile justice system in its entirety.
Another commenter questioned parents’ attempt in civil court to hold the school district liable for Ms. Altice’s conduct. I responded:
Like you, many say, “The only reason plaintiff is suing [x] is because [x] has deep pockets.” While the merits of individual cases are debatable, one aim of the criminal system is to deter and punish conduct like that Ms. Altice engaged in. That aim is accomplished by prosecuting her. Conversely, one aim of the civil system is to encourage involved entities to reform to prevent cases such as these from recurring. Often, that aim is accomplished in civil court.
I agree that when it comes to suing public entities, there’s no “they” and “them”: there’s only us – taxpayers. But while I cannot speak to Utah law specifically, in many cases, there is a “knew-or-should-have-known” standard. Even if school officials didn’t know, was such ignorace a case of willful blindness? Was it because school officials failed to take reasonable measures that would have apprised them of Ms. Altice’s conduct? These are reasonable questions.
Another commenter said that prosecuting Altice is a “[w]aste of taxpayers[‘] money,” and defended the seeming double-stardard that Ms. Altice would have received different treatment (justifiably so, in his view) if she were a man who had committed her crimes against juvenile girls. The system malfunctioned and would not allow me to post this comment. Had it not done so, I would have responded:
“Waste of taxpayers’ money.” I disagree. As to whether Ms. Altice is a threat, one need not use force or violence to perpetrate grave crimes and, in so doing, to constitute a serious threat. If Ms. Altice were a man, and/or if her victims were only slightly younger, and/or if their gender were different, many would rightly call her a possible pedophile. Just because most pedophiles aren’t violent doesn’t mean they don’t do serious harm. And you’re ignoring the fact that Ms. Altice occupied a position of special trust with respect to her victims.
And many people already are skeptical that how the criminal justice system treats people is based more on one’s race, gender, and class than on one’s actions. We need not perpetuate that skepticism by letting Ms. Altice off easy because she’s white, beautiful, and (compared to many) solidly middle-class, if not rich. And there’s ample reason to question whether Ms. Altice has learned her lesson in light of the fact that she sought to continue her relationship with one of her victims while out on bail. While it may be less a reality than an ideal, that’s no reason to discard the aspirational principle that all perpetrators, and all victims, should be equal before the law. The Constitution’s “Equal Protection” cuts both ways.
Update, July 13, 2015: Is Ms. Altice’s Sentence “Unjust”?
By Ken K. Gourdin
A recent letter to the editor of The Salt Lake Tribune decries the alleged injustice done to Ms. Altice. See here, last accessed July 13, 2015: http://www.sltrib.com/opinion/2718263-155/letter-appalling-sentence-in-teacher-sex. I commented:
I wonder, is Mr. Argenbright harking back to fond memories of his own “Mrs. Robinson relationship”? I may think the system is arbitrary and unfair, but, by and large, all I must do in order to avoid that arbitrary unfairness is obey the law. And people who defend Ms. Altice seem to forget (or to ignore, since it doesn’t fit their narrative that she is a victim of injustice) that she attempted to continue her relationship with one of the young men while she was out on bail. Ms. Altice’s defenders also downplay her position as an authority figure: even if the wrongfulness of Ms. Altice’s conduct is debatable, someone had to be the adult in these situations, and that someone should have been her. (And even if I thought there was nothing wrong with a relationship, if I were facing criminal charges because of it, continuing it while I’m free on bail is the last thing I would do.)
And I wonder, does Mr. Argenbright think Judge Kay pulled his sentence out of a hat, or that he rolled five dice that all came up “sixes”? Argenbright doesn’t seem to understand how sentencing works. There are guidelines for judges that either enhance or lessen a sentence, and, while I don’t know this for certain, I should think that Ms. Altice’s behavior in seeking to continue a relationship with one of the young men while out on bail would be an aggravating factor.
And ultimately, under Utah’s indeterminate sentencing regime, it is the Utah Board of Pardons and Parole that determines how long someone stays in prison. One of the factors that surely comes into play is whether (and to what extent) someone recognizes the wrongfulness of her conduct and demonstrates remorse for it. If, instead, she were to use some of the arguments in her own defense that her defenders have employed, that would seem to be a great argument for maximizing her stay.
Perhaps the following, from the Web site of the Utah Board of Pardons and Parole [see http://www.bop.utah.gov] last accessed July 13, 2015), will be helpful:
Prison sentences in Utah are indeterminate, meaning that imposed sentences are for a specified range of time, including a minimum and maximum time frame. The Legislature specifies the elements of, level of severity of, and applicable sentence for, each crime. When a sentencing court imposes a prison sentence following conviction, the court imposes the applicable indeterminate sentence. Currently, the typical indeterminate sentences in Utah are: 0-5 years for 3rd Degree Felonies; 1-15 years for 2nd Degree Felonies; and 5-Life for 1st Degree felonies. First degree felonies may carry a minimum sentence of between 3 and 25 years, depending upon the specific crime of conviction and applicable sentencing enhancements imposed by the court.
Once a person is sentenced to prison for the commission of a felony or Class A misdemeanor, the Board of Pardons and Parole has jurisdiction over that individual. When a person is sent to prison in Utah, the offender must serve the entire sentence imposed unless the Board acts to release the offender prior to the expiration of the sentence.
Update, July 15, 2015: A Woman Defends Ms. Altice, and I Respond
In a letter to the editor headlined (at least in the on-line edition) “In teacher sex case, blame the boys, too,” correspondent Sharon Teal Coray takes issue with Brianne Altice’s sentence. See her letter at this address (last accessed July 16, 2015): http://www.sltrib.com/opinion/2727266-155/letter-in-teacher-sex-case-blame. In what essentially could be called an open letter to Ms. Coray, even though I posted it in on-line comments to her letter at SLTrib.com, I responded:
Even if what you say is absolutely correct and these young men really had the time of their lives (at least, during the encounters themselves; more on that in a moment), someone should have said, “No.” If you’re right that the only thing these young men were paying attention to during their encounters with Ms. Altice was their raging hormones, and even if these young men are adults biologically, it still fell to someone to make the adult decision chronologically; that someone was Ms. Altice, and she failed to live up to that responsibility.
And even if someone has the time of his life (in the moment, at least), that doesn’t mean that he’s prepared to deal with all of the emotional baggage that comes with adult intimacy. Just because someone doesn’t regret (or doesn’t appreciate the implications of) something he does at the moment he does it doesn’t mean that there won’t be serious life complications later on (irrespective of the young men’s religion or of the spiritual consequences which that religion teaches can accompany such an act).
And even if we accept for the sake of argument that, generally, there’s nothing wrong in principle with someone who is Ms. Altice’s age having sex with adolescent males, even that purportedly innocent activity could raise legitimate questions in the minds of those adolescents’ classmates, if and when they learn of it: “Is my grade in this class going to be based less on my class performance and more on the kind of relationship I have (or don’t have) with the teacher?” We wouldn’t accept potential “Yes” answers to a similar question in the workplace, and we shouldn’t accept potential “Yes” answers to that question in the classroom.
If the genders of the participants were reversed, would everyone who thinks that Ms. Altice’s conduct wasn’t that bad (after all, all teenage boys care about is “getting some” anyway!) be consistent, and say the same thing? Or would we wonder if that male teacher isn’t a predator who is deserving of severe punishment? Too many people are already too concerned that the criminal justice system is prone to give someone special treatment simply because she’s female, beautiful, white, and, if not rich, at least solidly middle class. Do we really want to reinforce such double standards? I laud the strides toward gender equality that our society has made in recent decades, but treating Ms. Altice different because of her gender or because of that of her victims would seem to fly in the face of that progress. Equality for women cuts both ways: they shouldn’t get to enjoy its advantages without also incurring its burdens.
We all know people who are 18 going on 30, and others who are 30 going on 12. Still, while much is made of this state’s allegedly idiosyncratic attitudes toward sex, statutory rape laws hardly are unique to this jurisdiction. They exist because society in general, not just the people of Utah, have concluded that, regardless of purported consent, a myriad of adverse consequences are likely to result if one has sex before he or she is ready to do so psychologically, sociologically, and many in other ways. They also exist because society has determined that likelihood that one will be preyed upon (even if he or she purportedly consents) by an all-too-knowing adult increases with the disparity between the ages of the participants. And just because an adolescent male doesn’t regret an act in the moment he engages in it doesn’t mean he won’t regret it, or that he won’t be victimized by then-unforeseen consequences, tomorrow, or next week, or next month, or next year.
One doesn’t like the law, convince a majority that it should be changed. But Ms. Altice deserves no special treatment because of her race, her gender, her beauty, or her socioeconomic status (nor because of the gender of her victims). And if Ms. Altice’s punishment was in any way arbitrary or capricious, in the overwhelming majority of cases, the simplest solution to avoid falling victim to such arbitrariness or capriciousness is to be law abiding. Lest it be forgotten, Ms. Altice demonstrated an unwillingness to do that even while out on bail, seeking to continue her relationship with one of her victims. (Even if I think there’s nothing wrong with what I’ve done, and/or that I’m being railroaded by the system, the last thing I’m going to do is to seek to continue the conduct that subjected me to a potential criminal penalty while my case is still pending.)