Rape is Not Fornication

A shocking decision arose at an Idaho court in early February in the sentencing of a 19-year-old man with the rape of a 14-year-old girl. After pleading guilty to charges of statutory rape, Cody Duane Scott Herrera has been sentenced to celibacy until marriage, in addition to an intensive year-long therapy program.


After the initial sentencing of five to fifteen years of prison time, Judge Randy Stoker suspended his decision in favour of a one-year “rider” program instead. A “rider” program refers to the immersion of an inmate into a therapeutic program with the intention of reform. Herrera will be subjected to this therapeutic treatment, and, upon successful completion of the program, is faced with the probationary condition that he will not have sex with anybody until he is married.


The judge’s final decision was made in light of Herrera’s admission to pre-sentence investigators that he had had sex with over 34 partners so far at only the age of 19. The judge reported to “have never seen that level of sexual activity by a 19-year-old,” according to Times-News.


While this decision may come as shocking to many, fornication laws have been institutionalized in Idaho, in section 18-6603 of their state laws, which state that “any unmarried person who shall have sexual intercourse with an unmarried person of the opposite sex shall be deemed guilty of fornication, and, upon conviction thereof, shall be punished by a fine of not more than $300 or imprisonment for not more than six months or by both such fine and imprisonment; provided, that the sentence imposed or any part thereof may be suspended with or without probation in the discretion of the court.”


This rarely enforced fornication law, added to Idaho’s Statutes in 1972, enabled Judge Randy Stoker’s restriction of Herrera, as individuals on probation cannot break any laws — fornication laws included. In Stoker’s own words: ”if you’re ever on probation with this court, a condition of that will be you will not have sexual relations with anyone except who you’re married to, if you’re married.”


The judge’s controversial sentencing has been under scrutiny for its constitutional legitimacy, as it could be interpreted as infringing upon the constitutional right to procreation. As such, it is speculated that if Judge Stoker’s decision were to be appealed, it would likely not stand up in higher courts.


Another concern with Stoker’s sentencing is its lack of enforceability — while probation officers are vigilant in the monitoring of their offenders’ behaviors, keeping track of their sexual activity takes that scrutiny to the next level, and will likely be very difficult to enforce.


Additionally, many have criticized the judge’s decision as yet another example of the policing of sexuality in our society and as largely reflective of dominant ideas of what is normal for sex (and by extension, sexuality) and what is not. Fornication laws indicate the extent to which sexuality has been and continues to be cemented within institutionalized judicial systems, often serving to marginalize and exclude certain sexualities and sexual practices by reinforcing outdated conceptions of an “appropriate” sexuality.


Critics have additionally taken Stoker’s judgment as just that: judgmental. In his decision, Stoker serves to judge Herrera based on how many sexual partners he has had and not on what he’s really on trial for: the rape of a 14-year-old girl. In his focus on how many sexual partners Herrera has had, Stoker serves to treat Herrera as the victim (of a sex problem requiring therapy) and is ultimately failing to recognize who the legitimate victim in this scenario is. Many argue that while it can be agreed that Herrera has issues with sex (as highlighted by his rape of a minor), and should seek treatment for that, that treatment should be in addition to his charges, not supplemented by them.


Decisions such as Judge Randy Stoker’s highlight the myriad of ways in which sexual assault cases are built to favour the perpetrators of sexual violence over the victims. The sentencing of Herrera via fornication laws is additionally problematic as it attempts to parallel the concept of fornication with that of rape — which are not even closely comparable.