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  • Writer's pictureMario Nicolais

How a flawed system re-victimized a sexual assault survivor

Earlier this week, Austin Wilkerson slunk out of jail after a year behind bars.

Four years ago, Wilkerson sexually assaulted and raped Kendra Heuer. Last August, a Boulder judge spared him prison and sentenced him to two years in a work-or-school release program. Wilkerson served 367 days.  His release came 363 days early due to good behavior. He got early release and Heuer got, in her own words, a “lifelong sentence.” She is left consumed by “disgust and utter rage” at the system that lead to his early release.

Justice, the law, and public policy diverge dramatically in these cases.

Due to indeterminate sentencing laws, the presiding judge harbored legitimate concerns regarding the potential for Wilkerson’s rehabilitation. Specifically, he worried that any prison sentence could become a near-life sentence under the flawed system currently in place. Indeterminate sentencing requires woefully underfunded and understaffed rehabilitation courses before a prisoner may be released. The judge sentencing Wilkerson feared he would serve prison time far beyond the sentence imposed. Such concerns are astounding. It makes a judge’s role as the arbitrator of justice impossible. Consequently, the flawed system leads to bitter outcomes for some of its participants. Sadly, the flawed system forced Heuer to swallow the bitter pill here.

Wilkerson will be on probation for 20 years to life. He must register as a sex offender and is not eligible for removal from the registry for at least 20 years, if ever. He will always be a felon, with all the civil and economic disadvantages associated with that mark. Any internet search of his name will always result in page after page detailing his crime. These consequences are not negligible.

But is it enough? Heuer certainly didn’t think so.

As she made clear, she will live with Wilkerson’s crime the rest of her life. She intuitively understood what former First Lady Michelle Obama spoke about just last month: while physical harm usually fades, victim’s carry their psychological cuts and scars forever.

How Heuer lives with that reality and how it affects her will be 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. The loss of choice and personal sovereignty over your body is always damaging. As Heuer concluded in her plea to the judge for a lengthy sentence, “the rapist chose to ruin his life. But like the sexual assault itself, my life has been ruined without my consent.”

However, that is the very point when she lost control again. The point when the flawed system not only failed her, but re-victimized her. Wilkerson was only the first to victimize Heuer. Former friends and family blamed her for drinking too much. Some questioned why she waited so long to report the assault. Some minimized the attack, as if there is such a thing as insubstantial sexual assault. Last year, even as the court validated her courage, it did not honor her plea to impose the maximum sentence. Now policies governing good time served halved the sentence she opposed so adamantly.

Heuer didn’t have control in any of these situations. Instead, she had to endure the consequences of choices made by someone else. She became only another data point in an aggregate statistic rather than a voice listened to and heard. The combination left her in a state of justified rage.

I don’t know if there is a right answer to the dilemma posed by Wilkerson’s sentencing. But I do know that the wrong answer left Heuer without a semblance of input or control in the outcome. I can’t imagine there are many worse feelings for a rape victim.

With state policy makers now reviewing sentencing policies, I hope Heuer will summon the courage to speak out again. And if she does, those public officials must be wary to avoid re-victimizing her one more time.

Mario Nicolais is an attorney and writes columns on law enforcement, the legal system, and public policy. Follow him @MarioNicolaiEsq

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