Program Speeds up Prosecution
By Melissa Tanji
The Maui News [Hawaii]
July 21, 2006
WAILUKU – Former church deacon Ron Gonsalves was sentenced Thursday under the state's expedited sentencing program, which state lawmakers designed to provide better protection for sexual assault victims as well as speed up the process of prosecuting offenders.
"I feel it is a mechanism to be used in the criminal justice system," said Maui County Prosecutor Davelynn Tengan. "It's a tool that can be used in a positive way."
Tengan said the law benefits the victim, who does not have to testify, especially when the victim might already be feeling shame and guilt that he or she might have done something to warrant the assault.
Longtime Maui defense attorney Keith Tanaka also sees benefits with the law.
"I guess the benefit is at least (the defendant) is admitting to it. (Also) you are letting the victim not have to go through the trauma of testifying against the defendant and reliving the whole thing," he said.
Tanaka added the law helps the defendant get treatment quickly. Also, having the offenders admit their wrongdoing is the first step in getting help, he said.
The expedited sentencing program, established in 1993, is used in cases involving felony "intrafamily" sexual assault or incest.
The program requires the defendant to plead guilty to the offense and comply with the program's rules and cooperate with authorities.
But the program may also decrease the time a defendant spends in prison.
Gonsalves was sentenced to one year in jail and 20 years' probation for 62 sexual assault charges that stem from assaulting a boy over a three-year period. The boy was 12 years old when the assaults began in 2002.
Gonsalves could have faced a mandatory sentence of 20 years in prison for each of his 30 first-degree sexual assault charges and two attempted first-degree sexual assault charges if he were not allowed to participate in the program, or if a judge denied the expedited sentencing program for Gonsalves.
A first-degree sexual assault charge, which is a class A felony, also carries a fine of as much as $50,000.
After the Thursday sentencing hearing, Deputy Prosecutor Robert Rivera told The Maui News: "There is no question (that for) the acts he committed, he deserves 20 years or more in prison."
But Rivera said, "We don't sacrifice our victims" just to get that type of sentence.
Rivera said a regular trial process in Gonsalves' case would have created a hardship for the victim, and sparing the victim that trauma was a factor in going forward with the expedited sentencing program for Gonsalves.
"The victim in this case is extremely courageous to come forward," Rivera said.
He added that adults need to be responsible with their comments to not let children feel that they cannot rely on them to report a crime.
"They may not rely on adults to protect them," Rivera said.
While the Gonsalves expedited sentencing case has drawn a lot of attention, it is not a type of sentencing that is used often.
Tengan said: "I have a case that is coming up soon. (But) I certainly don't use it in all cases. By and large, it's going to be prosecuted by conventional methods."
Currently, the Maui Prosecutors office has three cases involving the expedited sentencing program, she said.
The expedited sentencing program is detailed and sets timelines and deadlines as well as initial criteria for defendants who want to participate.
Some of the program criteria include:
• The defendant must avoid having the child removed from the home and instead her or she must move and remain out of the home until otherwise ordered by the court.
• The victim of the sexual assault must have been under 18 when the assault occurred.
• The defendant must not have been sentenced previously under the program as well as never been convicted of felony sexual assault or incest.
During the process, a guardian is appointed in a family court proceeding.
The guardian and the prosecution must agree that the expedited sentencing program is in the best interest of the child.
In addition to the defendant's pleading guilty to the charges, the defense must also waive indictment and preliminary hearing from any criminal charges arising from the sexual assault.
In the program, offenders will receive 20 years' probation for first- and second-degree sexual assault. Lesser probation periods apply with lesser charges. Prosecutors may also ask for up to one year in jail along with the probation periods.
Even though the prosecution may be in favor of an expedited sentencing for a defendant, a judge has the discretion to rebut the sentencing but must detail in writing why the expedited sentencing is inappropriate.
Tengan said the program sometimes can be used to convict offenders that otherwise would not be convicted through the normal court process.
"Very often, as well, this mechanism can be applied where there is high level of abuse and assault; yet a great reluctancy in the victim to testify," she said. "Unless this mechanism is used, the offender will not have a consequence."
Tengan also said the program assists victims when they do not want the offending family member to get hurt.
"What they want is the assault to stop," she said. "That's what they mostly want. They don't necessarily want to see people in prison for 20 years or more."
Tengan said the prosecutors determine whether a defendant can participate in the program, not the victims.
There are different factors to weigh while considering an expedited sentence, which includes whether testifying in court may be too difficult for a victim.
"Certain things can happen to a victim when they testify. You have to wonder, really, is this worth it," Tengan said.
She said prosecutors evaluate if the child victim can relay the facts of the case, and they also ask the child how he or she would feel if the defendant were acquitted of the charges.
A child's personality as well as his or her history is also evaluated.
Tanaka said the defendant and others close to the case can also benefit as defendants can be considered for treatment right away, compared to if they were incarcerated and could wait years before treatment is sorted out in the state Department of Public Safety.
Also, with the program, offenders do not have to spend a long time in prison, where they often are mistreated by other inmates, Tanaka said.
"The people that get found guilty of sex abuse, especially against young victims, they get a hard time in jail; they get beat up," he said.
But Tanaka said that if offenders violate probation, they do face long prison terms.
The conditions of probation for those sentenced under the expedited sentencing program include: participating in an appropriate sex offender assessment and treatment; paying for the cost of assessment and treatment; and complying with orders from the court as well other conditions including those to protect the victims.
Melissa Tanji can be reached at firstname.lastname@example.org.
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