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  • Writer's pictureMario Nicolais

Boulder sexual assault case provides no answers in a broken system

I don’t have the answer. I want that to be clear right from the beginning.

As a member of the University of Colorado family, an attorney and stepfather to a college-aged woman, the stories regarding Austin Wilkerson and the sexual assault he committed leave me with many more questions than answers. I didn’t sit through this trial or sentencing, I didn’t hear the testimony, and I don’t know all the mitigating or aggravating factors. But it has become another flash point for outrage.

It is a case when everyone walks away at a loss, from the individual victim to the broad justice system.

At the very center, Wilkerson’s victim will live with his crime the rest of her life. How she lives with it and how it affects her is as unique as every survivor of sexual assault is unique. The long-term repercussions on victims’ physical, psychological and social lives vary widely. What doesn’t vary is that they suffered against their will. And make no mistake, there is no such thing as insubstantial or minor sexual assault. The loss of choice and personal sovereignty over your body is always damaging.

That reality that fueled the wave of outrage following Wilkerson’s sentencing: A Boulder city council member declared Wilkerson went “unpunished.” Multiple prosecutors lamented the judicial discretion that did not send him to jail. The victim herself referred to it as a “light sentence.”

For the record, Wilkerson will spend the next two years in jail — but not prison — when he is not either working or attending class. He will be on probation for 20 years to life. He must register as a sex offender and is not eligible to be removed from the registry for 20 years, if ever. He will always be a felon, with all the civil and economic disadvantages associated with that mark. The prosecution asked for more, the probation department advised less.

Is that justice? As I said to start, I don’t know. Distressingly, it seems that Judge Patrick Butler — the presiding judge in Wilkerson’s case — doesn’t know either.

Judge Butler freely admitted that he agonized over the decision. Most interesting, he said, “I think we all need to find out whether he truly can or cannot be rehabilitated.” Left unsaid, but clear, Judge Butler did not believe that Wilkerson could be rehabilitated in prison. That is a systematic failure.

That an experienced district court judge does not have faith in the prison system to rehabilitate Wilkerson is damning. Not only does it seem the prison system lacks the resources to rehabilitate Wilkerson, or felons like him, but that failure potentially strips the court of control over the sentence. Because indeterminate sentencing is mandated for sexual assault cases, the term issued by the judge means little more than the minimum. In fact, the maximum is only a hypothetical. If a prisoner does not complete court-ordered treatment program, then release is not granted regardless of time served. If the prison simply does not have the resources to treat and supervise a prisoner, a four-year sentence can turn into life behind bars. For Wilkerson, that would be decades.

That choice is no choice. Judges must have more options and the prison system must be granted resources to generate better outcomes and engender more confidence.

That leaves the only solution to the Legislature. While Judge Butler may be metaphorically hanged in effigy and face a campaign to recall him from the bench, those actions will effect no long-term change. That can only come through a change in the law, through action by the Legislature.

Right now it’s a broken system. I hope that the next legislative session will see elected officials start coming up with answers.

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