Rape shield laws limit defense's case: Local man says restrictions did him in
By Jeff Wiehe
Robert “Jake” Romero is 29 years old and destined for a prison cell.
He's currently in Allen County Jail, waiting to go to a state prison where he'll serve at least some of a six-year sentence for a sex crime he emphatically claims he did not commit.
Sexual misconduct with a minor, possession of child pornography, dissemination of matter harmful to minors — all convictions stemming from the false accusations of a troubled kid he knew well, he says.
Romero had what will probably be deemed a fair trial in front of a 12-member jury of his peers last month, but he says Indiana laws designed to protect sex-crime victims handicapped him and thwarted his best defense.
What he couldn't say in court was that his 14-year-old accuser had previously admitted to molesting children himself and also claimed he had been “touched” by another man.
“I honestly believe if the jury could look at even half the information we walked in there with, there would've been a totally different scenario,” said Romero from jail July 16, two days before he was sentenced.
Romero's contention was that the teen's allegations against him were false and that the teen has a history of making such claims against others, but he could not call into question the teen's credibility.
Indiana rape shield laws, except in very specific and rare occasions, bar introducing a victim's sexual past in a trial.
The laws are designed to keep the past sexual lifestyle or transgressions of a sex crime victim, witness or defendant out of a jury's mind so as not to not cloud the charges being prosecuted.
“I can't believe we have a justice system with so many gaps in it,” Romero said.
What goes unsaid
When a prosecutor repeatedly asked the jury in Romero's trial what motivation the teen could have for making up serious accusations against a man whom he apparently loved, all Romero could do was grit his teeth.
What Romero knew and the jury did not was that the teen told a New Haven Police detective in April 2006 - two months before Romero allegedly did anything - that he had his two younger brothers perform sex acts on him during a game of truth-or-dare in November 2005.
The boy further stated in the interview, according to a police report, to being inappropriately touched by a man he met at the Kendallville Bluegrass Festival in 2004. The case was closed after the interview, according to the report.
“I can't bring up any of that information,” Romero said outside the courthouse as the jury deliberated his fate.
Later, in jail, he said he hoped the boy and his siblings would get the help they needed, questioning the way their family raised them.
In October 2006, the boy called his mother while she was vacationing to say he was having a breakdown because he had kept secret what Romero had done to him when he went to Romero's home to do yardwork that summer. He said Romero showed him pornography and the two began having sexual contact.
Though the boy first said the sexual relationship began in mid-March, according to a Fort Wayne Police report, the timeline eventually changed to sometime between June and August, according to court documents.
At first it happened about 12 times, the boy said, but Romero was charged with only two counts of sexual misconduct with a minor, one of which the jury found him not guilty of.
Romero and his live-in boyfriend, Larry Lautzenhiser, said the boy was at their home perhaps only three times in 2006 because they feared having him around after he admitted to molesting his brothers. The previous summer the boy made constant visits because of his unstable home life, Romero and Lautzenhiser said.
“The rape shield laws can be good and bad,” said attorney Kevin Likes, a 26-year veteran who defended Romero.
“I don't think they're flat-out terrible laws. It's a double-edged sword. They can protect not only the victim, but if the defendant has a checkered past, it protects them as well.”
According to Allen County Prosecutor Karen Richards, previous allegations like the one the boy detailed to the New Haven detective are admissible in court if it can be proved those allegations are demonstrably false.
“You nearly have to have them say they made the whole thing up,” she said.
Search for truth
Richards' office, which prosecuted Romero, does take into account a sex crime victim's past when deciding to move forward on a case, though her lawyers know such information is inadmissible.
She said occasionally a victim makes serial claims of a sex crime, and her office will recognize some claims to be false and not prosecute.
She said many times victims of molestations are victims multiple times from multiple people.
She did not speak directly about Romero's case, but said if the teen had said he was molested before, it would not be unusual.
She also said if her office files charges in a case, her lawyers believe a crime occurred.
“If we did not believe that it happened, we would never charge anything,” Richards said. “This office is not supposed to be all about prosecution; it's supposed to be about the search for the truth.”
Romero said prosecutors were searching not for the truth but for an easy conviction.
He passed a lie-detector test administered by a local law enforcement officer picked by prosecutors on the charges of sexual misconduct with a minor.
Romero said it took him a year of pestering prosecutors to take it - plus him paying for it - before it was done.
Though those tests are never admissible in court, unless both the prosecution and defense agree beforehand, Likes was surprised the charges against his client weren't dropped.
Richards said her office puts little weight on the lie-detector tests, even those administered by people her office picks, and has many times filed charges when a defendant has passed such a test.
“It's the first time ever I had a client who passed with an operator picked by the state and they still went forward,” Likes said.
But it was more than just rape shield laws complicating Romero's case, according to Likes. His lifestyle and type of crime presented an uphill battle: Likes had an openly gay man accused of a sex crime involving a young boy.
In addition, he was dealing with Romero's vast porn collection - much of which was homosexual in nature - which included more than 2,000 files downloaded from the Internet peer-to-peer sharing network KaZaA and put onto disks.
Of all those files, prosecutors found one file containing child porn that was put on a disk with a batch of other files years before officers came to search Romero's home. He claimed the file-sharing service allowed a person to download many files at a time, some that could take hours to complete.
He did look for porn, but never child porn, and somehow the offending file showed up in his computer tucked in with other files without his knowledge, he said.
Romero wanted to introduce a study on file-sharing programs by the U.S. General Accounting Office that found using even innocent word searches on KaZaA returned files containing child porn.
“Another thing clients have a hard time understanding is you just can't whip those studies out and start reading them in court,” Likes said.
“We were prepared for this,” said Lautzenhiser, Romero's live-in boyfriend, after the sentencing hearing, which was attended by nearly two dozen friends and family.
“We'll keep fighting.”
Romero decided to not make a statement at his sentencing. Days before the hearing he was still contemplating what he wanted to say, if anything, since he knew his accuser and his accuser's mother would be in the courtroom. In the end he let Likes do the talking for him while still maintaining his innocence.
“I'm not going to lambaste them, but I'm certainly not going to thank them for throwing my life away,” Romero said of the boy and the mother leading up to the hearing.
He had hoped at best for home detention or work release, but Likes during the hearing indicated he knew there would be some prison time.
Romero had turned down a plea deal from prosecutors that would've given him 10 years in prison - five with good behavior. He was sentenced to six instead, or three with good behavior.
Romero stared ahead as the mother of his accuser detailed the boy's suicide threats and anger, calling the past 21 months a nightmare.
He continued to stare ahead even as the teen spoke. He called Romero “Jake,” as he's known to his close friends, throughout his speech. He said that he had been beaten up at school as news of what happened spread, detailing how the case tore apart his family and circle of friends.
“I wouldn't lie about any of this,” the teen said. “I can't tell you I want to see Jake right there (in the defendant's seat). I love you, Jake.”