Jason Clayworth

jclayworth@dmreg.com

© COPYRIGHT 2016, DES MOINES REGISTER AND TRIBUNE CO.

Some Iowa teachers convicted of sexually abusing students have been placed on probation rather than sentenced to prison, despite a state law requiring they spend time behind bars, a Des Moines Register investigation has found.

The law, passed in 1997, specifically prohibits anyone who is a "mandatory reporter" of child abuse — such as a teacher, social worker or psychologist — from eligibility for probation.

It was passed to hold educators and others in positions of power and influence over children to higher standards of accountability.

But the Register's review of such cases over the past five years revealed at least seven instances in which teachers served no prison time after being convicted of sex crimes involving children attending their schools. Some judges, prosecutors and defense attorneys acknowledged the mistakes, which they said resulted from misunderstandings involving the sentencing requirements for such cases.

Legal experts said discovery of the mistakes could prompt courts to set aside the sentencing agreements or retry the cases.

The most recent cases:

Cherokee physical education teacher Chad Osler was accused of having sex with a student over a three-year period before his arrest in 2015. In July, a judge waived his 10-year prison term for third-degree sex abuse and instead ordered him to serve five years of probation. The victim was no more than 15 years old in 2013 when the conduct began, according to court documents.

A Floyd County judge waived 10 years of prison and sentenced Pella band instructor Ben Thompson to five years of probation in April. Thompson was accused of sexually abusing a student 14 or 15 years old, court records show.

Remsen-Union teacher Samantha Kohls in April was sentenced to one year of probation after pleading guilty to lascivious conduct with a minor. The case involved sex with a 17-year-old student. After probation, her conviction could be expunged.

State Court Administrator David Boyd recently alerted county attorneys and chief judges in all eight Iowa judicial districts about the sentencing errors the Register identified and reminded them of the requirements.

Mandatory reporters are generally licensed professionals in education or health care who have frequent contact with children or dependent adults in the course of their work. The law requires they notify the Iowa Department of Human Services within 24 hours after learning of potential abuse.

All of the cases examined during the review involved victims under 18 years old and educators convicted under Chapter 709, the state’s sex abuse law. That statute, passed in 1997, states that mandatory reporters who are themselves convicted of sex abuse are not eligible for so-called “deferred” or “suspended” sentences.

“How they get by that, I have no idea,” said Nancy Wells, director of the Iowa Chapter of Children’s Advocacy Centers, a group associated with Iowa health providers that helps provide training and advocacy against abuse.

Confusion and oversight

The Register attempted to reach prosecutors, judges and defense attorneys involved in each case it reviewed.

During Kohls' sentencing in April, District Court Judge Jeffrey Neary said, “There’s not much more that I can do as far as a penalty,” a court transcript shows.

Neary told the Register in August that he wasn’t aware of the nuances of the law as it pertains to mandatory reporters. He said he largely relies on the recommendations of prosecutors and discussed sentencing options for Kohls with Plymouth County Attorney Darin Raymond in a parking lot.

“Legitimately, I have not studied or looked at that specific statute as to that mandatory versus discretionary reporter,” Neary said. “Frankly, I don’t think I was probably aware of that distinction or that nuance until probably after that.”

In a separate interview, Raymond told the Register he didn’t believe Kohls should be considered a mandatory reporter because the victim was not her direct student.

“She was a middle school teacher, and he was a high school honors student. He never had her as teacher,” Raymond said.

However, Scott Brown, an assistant Iowa attorney general, said the sentencing requirement for mandatory reporters is not predicated on whether the victim is directly under the educator’s supervision.

Raymond also said the male victim asked that Kohls receive the lightest possible sentence, and that, too, factored into the sentencing recommendation.

Des Moines defense attorney F. Montgomery Brown represented two former teachers whose cases were among those the Register reviewed. He acknowledged the sentencing errors.

“I think there was a mistake on all three parts: the attorney general’s office, me and the judge. None of us knew about it, frankly,” Brown said when discussing Drew Lipovac, a former Winterset teacher convicted in 2012 of sexual exploitation by a school employee and sentenced to two years of probation.

After probation, public records erased

The Register's review also revealed multiple instances in which educators accused of sexually assaulting students were granted deferred judgments, something that's also prohibited under Chapter 709.

Offenders receiving such sentences are placed on probation. Those who complete probation without further violations can then petition the courts to have the charges dismissed and the records sealed from public view.

Carlisle High School band teacher Alex Dyer, for example, is eligible to ask the court to remove from his criminal record any mention that he sexually assaulted a 17-year-old student. Dyer was sentenced to five years of probation and a deferred judgment after pleading guilty in September 2011.

Doug Eichholz, an assistant Warren County attorney, said his lack of awareness of Chapter 709 sentencing requirements contributed to the error. But he also said a sentencing chart published by the state's judicial branch suggested that offenders such as Dyer were eligible for no prison time.

The chart's footnotes, however, warn prosecutors to check Chapter 709 for exceptions to the guide.

Eichholz also noted that statutes pertaining to sexual assaults are in a different chapter than the one that discusses sentencing restrictions for mandatory reporters.

"That doesn’t excuse me," he said. "I’m not trying to throw anyone under the bus. But that’s some of the confusion of what I relied on.”

Law's author: Intent is clear

Wayne Ford, a former state representative from Des Moines, sponsored the 1997 legislation after a female teacher avoided prison despite being convicted of having sex with a male student.

He believes the Legislature should consider whether there are ways to simplify — but not weaken — the mandatory reporter law to avoid mistakes such as those uncovered by the Register.

“This is emotional,” Ford said during a recent interview. “That was my first bill, and it was a good bill. It means that if you’re a teacher, you can’t have sex with children or you’re going to prison. Period. And that’s not being enforced? Give me a break!”

The Iowa Attorney General’s Office declined to discuss specific cases, but said if the victim was a juvenile when the act took place, those convicted of such crimes must face prison time and are ineligible for deferred judgments allowing the charges to be dismissed after serving probation.

Brown, the assistant attorney general, made that point publicly in 2013 when Ashley Nicole Anderson, a teacher at Aplington-Parkersburg High School, was sentenced to five years in prison for having sex with three students. There is no way a school employee convicted of sexually exploiting a student can avoid prison under Iowa law, he said.

Brown reiterated that position during an interview last month. He said the cases reviewed by the Register are likely the result of errors by prosecutors or judges.

“It’s not like you sit down and memorize a code book,” he said. “I think there are some prosecutors who don’t know it and that may be why you’re seeing some of these sentences.”

Sentences could be vacated

The legal implications behind the state’s failure to follow the law are murky.

Brown said anyone with “standing” in the case can ask the court to correct what is believed to be an illegal sentence. That could include a judge, the Iowa Department of Corrections, prosecutors or the defense.

If that were to happen, it’s likely that the defendant’s plea would be rescinded, and the case could essentially be prosecuted anew, Brown said.

But Brown said he believes the issue falls under the so-called “law of the case” principle. That’s where a court's actions — even if wrong — would stand.

Bob Rigg, criminal law professor at Drake University, said several things could factor into what might happen next in the seven cases identified by the Register and any others that prosecutors might later determine were the result of similar sentencing errors.

Defendants must be informed about the possible consequences of agreeing to a plea deal, which likely didn’t occur in all or some of those cases. That could mean the original pleas would be vacated and could result in new trials, he said.

“I’ve been looking at case law, and I just don’t think this specific issue has been raised,” Rigg said.

No prison, but no teaching license, either

None of the teachers benefiting from sentencing errors that allowed them to avoid prison sentences after being convicted of sexually abusing students is back in an Iowa classroom, records show.

State rules mandate a teacher's license must be permanently revoked if he or she is convicted of sex abuse. The license generally remains on hold until the conclusion of a criminal case. The board's final action can lag months after a conviction, noted Ann Lebo, director of the Iowa Board of Educational Examiners.

All but two of the teachers' licenses have been revoked.

Teachers are technically allowed to continue teaching while an ethics complaint associated with a criminal charge is pending. However, once convicted of sex abuse, the teachers are generally added to the Iowa Sex Offender Registry. That means they are legally prohibited from teaching immediately following conviction regardless of the board's final action, Lebo noted.

The license of Ben Thompson, the former Pella band instructor who was sentenced in April, is good until August 2018. And the license of former Cherokee physical education teacher Chad Osler expired in March. Both are on the sex offender registry, which would preclude them from teaching again.

Sentencing errors in other teacher cases

At least two other Iowa teachers were placed on probation after being convicted of sex crimes involving students in recent years, records show, despite an Iowa law requiring prison sentences for teachers and other mandatory reporters convicted of such offenses.