A judge in upstate New York has sparked national outrage with a probation-only sentence for a school bus driver who admitted to raping a 14-year-old girl. But a state court spokesman says the judge was "well within" the sentencing range for a negotiated plea conviction for third-degree rape, which in New York means the victim can't consent to sex because they are under the age of 17.

 

Jefferson County Supreme Court Judge James McClusky last week sentenced 26-year-old Shane Piche to 10 years of sex offender probation after Piche pleaded guilty to raping the victim at his Watertown home in June. Piche has since been fired from his job driving a bus in the victim's school district, according to his defense attorney. 

Sentencing guidelines for a class E felony such as third-degree rape call for anywhere from five years of probation to 1-1/3 to 4 years in prison, New York courts spokesman Lucian Chalfen said. 

The lack of jail time for Piche was harshly criticized  on social media as being too lenient, with critics blasting McClusky for imposing a sentence they said didn't fit the severity of the crime. An online petition calling for McClusky's removal has amassed more than 50,000 signatures. 

The victim's mother also expressed disappointment in the sentence.

"I wish Shane Piche would have received time in jail for the harm he caused to my child," she said in a statement released to CBS affiliate WWNY-TV. "He took something from my daughter she will never get back and has caused her to struggle with depression and anxiety."

Chelsea Miller, of the New York State Coalition Against Sexual Assault, told the Associated Press the sentence may "discourage survivors who see jail or prison time as a form of accountability."

The sentence came after a plea negotiation between Piche and prosecutors, and it wasn't immediately clear what led to McClusky's decision. A transcript of the Thursday sentencing hearing wasn't immediately available, and a pre-sentencing report from the county probation department - which Piche's defense attorney Eric Swartz said recommended probation rather than jail time - isn't available publicly under New York regulations. McClusky's office referred comment to Chalfen, who condemned "numerous vitriolic" calls to the judge's chambers he said were fueled by social media and a lack of understanding of the case.

Chalfen, Swartz and the Jefferson County District Attorney's office all noted the case revolved around the 14-year-old victim's inability to consent due to her age, rather than a use of force. People may have a "preconceived notion that his was a violent, physical act," said Jefferson County Chief Assistant District Attorney Patricia Dzuiba. "I'm not saying this wasn't terribly traumatic for the victim, but the charges were based on the lack of ability to consent based on age.

The district attorney's office initially charged Piche with second-degree rape, which in New York can mean the victim can't consent to sex because they are under the age of 15. Prosecutors later offered him the lesser charge of third-degree rape, Dziuba said, in part because of similar sentencing guidelines and also because Piche was willing to plead guilty, sparing the victim from having to testify twice — once before a grand jury and once at trial. 

Prosecutors asked for a "split to probation" sentence under which Piche would have served six months in the local jail and then the remainder of the 10 years on probation. Dziuba said part of the outrage over the case may stem from a misunderstanding that there's an automatic prison sentence for a rape offense.

"Certainly I understand the notion that well, for rape you go to prison — in a perfect world that would be the case," Dziuba said. "But that's not always the case. There's certain levels, just like every other crime."

Dziuba said prosecutors aim to find a balance between doing what's best for the victim, fighting for justice and incorporating treatment and counseling for the defendant to reduce their risk of offending again. Sometimes, she said, a plea negotiation is the best way to accomplish those goals.

"It's a tough spot — our job is to do justice, and you have to take a lot of things into consideration to do that," Dziuba said.

No such thing as a "typical sentence"

Charges and sentencing guidelines for sex crimes vary widely, and with no comprehensive data tracking for sentencing nationwide, it's hard to say what would amount to a "typical sentence" in a sex assault case, said Jennifer Long, the chief executive officer of AEquitas. The non-profit group supports prosecutors in seeking justice in gender-based violence and human trafficking cases.

Long couldn't speak to the particulars of the case against Piche, but said, "I'm not surprised that people are outraged by a sentence that doesn't seem to match the seriousness of a crime like that against a victim."

Long said sexual assault is one of the most serious charges that can be levied against a defendant, especially when the victim is young. Judges take a wide variety of legitimate factors into consideration during sentencing, Long said, including the circumstances of the crime, the impact on the victim, whether the defendant has any prior criminal history, whether the defendant has taken responsibility, and the impact on the community. Long cautioned against factors she said judges sometimes weigh but shouldn't — including any elements of blaming the victim.

 

She also expressed concern about minimizing an assault where a victim is unable to consent because of their age or some other reason, simply because it didn't involve force.

"Particularly when the victim is young, [rape] can have many serious impacts," Long said. She added, "These laws are passed precisely because individuals at that age don't have the capacity to form the judgments that allow them to give true consent like an adult would."

Critics also blasted the judge for requiring Piche to register as a level 1 sex offender — the lowest of three tiers available in the state based on  risk level of re-offending — rather than a more stringent classification requested by prosecutors that would have made his name and address searchable on the local sex-offender registry.

Swartz, the defense attorney, said Piche was initially charged with giving two other girls alcohol at his home in addition to the rape, but said Piche did not admit to giving the other two girls alcohol under the terms of his plea. The number of victims can be one factor that can increase the risk level for sex offenders under a state risk assessment system, and according to the Watertown Daily Times, McClusky noted the case involved one victim in ruling Piche should be classified under the lowest tier.

Chalfen, Dziuba and Swartz all pointed to stringent monitoring and treatment requirements required as a part of the state's sex offender probation program, which also would bar Piche from working in any capacity with children, and noted any violation could mean prison time.

Other judges have faced extreme backlash over controversial sentences in sex abuse cases in recent years.

Santa Clara County, California, Judge Aaron Persky was recalled by voters last year after an uproar over a sentence of six months in jail and three years of probation for ex-Stanford swimmer Brock Turner for a sexual assault conviction.

Chalfen, the New York courts spokesman, said the courts "do not contemplate any action as this is an issue of judicial discretion, not an administrative one."

"Judicial independence is a cornerstone of our society," Chalfen said. "Removing judges for handing down sentences that some may disagree with cuts both ways, leaving us with no process of accountability."